Rules Published with this Register and Final Regulatory Flexibility Analyses

The following administrative rule orders have been adopted and published in the November 30, 2008, Wisconsin Administrative Register. Copies of these rules are sent to subscribers of the complete Wisconsin Administrative Code and also to the subscribers of the specific affected Code.

DATCP estimates that VHS testing requirements under this rule will affect 30-40 private fish farms, not counting DNR "cooperator" fish farms registered by DNR (see state fiscal impact above). The combined total cost to all affected private fish farm operators will be approximately $20,000 per year. However, some of those affected fish farmers are already performing VHS tests in order to meet federal requirements for shipping fish in interstate commerce, so the net impact of this rule may be less than $20,000. Fish farm costs may increase if USDA finds that additional fish species are susceptible to VHS (the amount of the increase will depend on which fish species are found to be susceptible).

Effect on Bait Dealers

The VHS testing requirements under this rule will have an immediate impact on approximately 25 Wisconsin bait dealers who are currently harvesting emerald shiners from the wild (emerald shiners are the only bait species known to be susceptible to VHS at this time). VHS testing costs may deter wild harvesting of emerald shiners for sale as bait, but affected bait dealers may still harvest and sell other types of bait (emerald shiners comprise only about 10% of the bait market).

Bait dealers that are not currently harvesting emerald shiners will not be substantially affected by this rule unless USDA finds that additional bait species are susceptible to VHS. If USDA finds that other major bait species are susceptible, this rule could have a more dramatic impact on bait dealers. The impact will depend on the species that are affected.

Farm-Raised Deer Keepers

This rule will help control chronic wasting disease and other diseases, for the benefit of the entire farm-raised deer industry, and will make state rules consistent with federal rules. This rule will have minimal impact on most individual operators, and will reduce costs and facilitate deer farm operations in many cases. Some operators may have slight increased costs for fencing, record keeping or animal identification, but fencing costs may be reimbursed by USDA.

Cattle and Goat Producers

This rule allows dairy herd improvement technicians and certified veterinarian technicians to collect milk samples that are used as Johne's disease test samples. That will make it easier, and less costly, for many dairy farmers to participate in the Johne's disease herd testing and management program.

This rule clarifies and strengthens some cattle import restrictions, for the protection of Wisconsin's livestock industry. Import rules will not have significant adverse effects on the livestock industry.

Poultry Producers

This rule will have no adverse effects on poultry producers. It will give poultry importers and exhibitors more flexible movement options, without weakening disease protection.

Animal Markets, Dealers and Truckers

This rule will simplify licensing of animal market operators, dealers and truckers, by eliminating current knowledge testing requirements. This rule will require some animal market operators, dealers and truckers to make minor changes in recordkeeping and operating procedures. Recordkeeping changes will improve disease control and traceback capability, for the benefit of the entire livestock industry. This rule will not have any significant adverse effect on animal market operators, dealers or truckers.

Persons Keeping Livestock; Premises Registration

Under current law, a person who keeps livestock at a location in this state is required to register that location with DATCP. This rule does not expand or modify current registration requirements, except that this rule will make it easier and more convenient to register. Among other things, this rule will extend the registration renewal period from one year to 3 years. This rule will not increase costs or compliance requirements for livestock operators.

Other Affected Businesses

This rule will not have any significant adverse impact on other affected businesses. This rule will clarify current rules, and improve disease control, for the benefit of the entire livestock industry.

Small Business Accommodation

DATCP has not exempted small businesses from this rule, because the risk of disease spread is unrelated to business size.

Summary of Comments by Legislative Review Committees

On August 13, 2008 DATCP transmitted the above rule for legislative review. The rule was assigned to the Senate Committee on Agriculture and Higher Education and to the Assembly Committee on Agriculture. The legislative review period expired on September 25, 2008.

No hearings were held and the neither committee requested any changes to the rule.

This rule repeals and recreates current DATCP rules related to renderers (none of which is a small business), animal food processors, grease processors, dead animal collectors and carcass dealers. These entities process and handle inedible animal carcasses and carcass materials, and produce products for non-food use. This rule helps these businesses by clarifying current licensing and regulations. The rule seeks to prevent diseases and food safety incidents that could threaten the entire industry. These businesses are already required to comply with federal restrictions incorporated by reference in this rule. DATCP has provided information and assistance to help them comply. This rule does not increase industry fees.

This rule incorporates current federal regulations that prohibit the feeding of protein from mammalian tissues to cattle or other ruminants. The federal regulations are designed to prevent the incidence of BSE ("mad cow disease"). DATCP is already enforcing the current federal regulations that are incorporated in this rule. This rule does not yet incorporate new federal regulations barring certain cattle materials from all animal feed, which are scheduled to take effect in April 2009, but DATCP will enforce those new federal regulations on behalf of the United States Food and Drug Administration (FDA) when they take effect.

This rule affects state-licensed meat establishments that slaughter or process meat or poultry (effects may vary, depending on the nature of the establishment's meat slaughter or processing operations), as well as meat brokers and distributors. However, the impact on these meat establishments, brokers and distributors will be quite limited because the entities have already implemented most of the practices required by this rule. For example, meat establishments are already implementing relevant federal regulations related to nonambulatory cattle, listeria prevention plans and retained processing water. This rule also clarifies current rules related to meat brokers and meat distributors.

Consistent with recent changes in federal regulations (state rules must be at least "equal to" federal regulations), this rule now (1) prohibits, with limited exceptions, the slaughter of non-ambulatory disabled cattle for human consumption (DATCP is already enforcing this federal prohibition), (2) requires producers of "ready-to-eat" meat products to have written procedures for minimizing food safety risks related to Listeria monocytogenes (DATCP has already implemented this federal requirement), and (3) restricts the amount of water from post-evisceration processing that may be retained in raw meat and poultry.

This rule clarifies current recordkeeping requirements, but it does not add significant new recordkeeping requirements (except that it adds some minimal recordkeeping requirements for meat brokers and meat distributors). This rule requires regulated entities to keep records for 3 years (instead of 2 years under current rules). Businesses will not need additional professional services to comply with this rule.

This rule will make it easier for affected businesses to understand and comply with the rules that apply to them. DATCP will send copies of the rules to all affected businesses and will offer education and training during inspections.

This rule will not have any significant adverse impacts on small business. DATCP has not exempted small businesses, because the food safety and other requirements under this rule are important for small as well as large businesses. DATCP has already adopted a rule (subch. VII of ch. ATCP 1) that allows DATCP to exercise enforcement discretion for small business.

Summary of Comments by Legislative Review Committees

On July 21, 2008, DATCP transmitted this rule for legislative review. The rule was assigned to the Assembly Committee on Agriculture and the Senate Committee on Agriculture and Higher Education. No hearings were held for the rule and no modifications were requested.

These rules primarily establish or refine design, construction, operation and maintenance standards for public safety, and for protecting the waters of the state from contamination by liquids that are flammable or combustible or are federally-regulated hazardous substances. These rules are minimum requirements to meet the directives of the Statutes, and any exceptions from compliance for small businesses would be contrary to the statutory objectives that are the basis for the rules.

A substantial number of the issues raised during the public Hearing process may have been raised by or on behalf of small businesses, and addressed topics such as readability, retroactivity, secondary containment, periodic inspections, excessive costs, and leak detection. The Department made significant and numerous changes to the rules in response to the Hearing comments. For example, (1) wherever requirements would apply retroactively to an existing facility — and wherever they may have been misunderstood to so apply — the rule text was reviewed and modified where appropriate to more clearly convey which requirements are retroactive, and which are not; (2) wherever the Hearing draft referred to a required form or financial-responsibility document, the rule text and associated informational notes were reviewed and modified where appropriate to clearly convey which form or document is needed, and how to obtain it; (3) wherever the Hearing draft referred to a responsibility of an owner or operator or both, the rule text was reviewed and modified where needed to clearly convey who has the responsibility; (4) the tank registration and permitting processes were extensively clarified; (5) the recordkeeping requirements for aboveground tanks are no longer partly located in the subchapter for underground tanks, and both sets of recordkeeping requirements were clarified; (6) criteria for existing sumps and other secondary containment were clarified to require periodic inspection and maintenance rather than replacement, including where existing sumps are smaller than is required for new sumps; (7) requirements for sumps were clarified to recognize dispenser pans, spray-on liners, brushed-on liners, formed-in-place containment products, and other effective secondary containment practices that are currently in use; (8) periodic inspections for aboveground steel tanks were clarified to not apply to heating oil tanks and tanks at farms and construction sites, and were changed to not apply to tank wagons or movable tanks or tank vehicles, and are no longer required for tanks that are smaller than 1,100 gallons; (9) the compliance period for installing overfill protection at existing facilities was doubled; and (10) the roles of owners, operators, contractors and delivery personnel in preventing and responding to releases were clarified.

Summary of Comments by Legislative Review Committees

No comments were received, although a hearing was held on August 20, 2008, by the Assembly Committee on Natural Resources.

Pursuant to s. 227.19 (3m), Stats., the Department has determined that the rules that clarify chapter Comm 45 relating to mechanical refrigeration and that update chapter Comm 41 by adopting the latest edition of the boiler and pressure vessel codes published by the American Society of Mechanical Engineers (ASME) and modifying these standards, where necessary, to reflect any Wisconsin statutes or to improve clarity will not have a significant impact on a substantial number of small businesses.